Monday round-up

Posted Mon, May 13th, 2019 7:06 am by Edith Roberts

Amy Howe reports for this blog, in a post first published at Howe on the Court, that on Friday, “Republican legislators from Ohio and Michigan … asked the Supreme Court to put lower-court rulings that found partisan gerrymandering in those states on hold while they appeal”; the legislators argue that the Supreme Court may decide this term in partisan-gerrymandering cases from North Carolina and Maryland “that partisan gerrymandering claims do not belong in court at all.” At Modern Democracy, Michael Parsons observes that “[i]f the remedial process is dragged out long enough, the [Ohio and Michigan] plaintiffs might miss their chance at relief before the 2020 election even if the Supreme Court affirms in the North Carolina and/or Maryland cases,” and he offers “a few strategic case-management suggestions for district courts looking to provide timelier relief.”

On the eve of publication of his new memoir, “The Making of a Justice: Reflections on My First 94 Years,” retired Justice John Paul Stevens sat down for interviews with several Supreme Court reporters. At NPR, Nina Totenberg talked to Stevens about “the takeaway from the book,” the court’s recent turn to the right, and the justice’s “racket skills,” now most often deployed at table tennis. Jess Bravin reports for The Wall Street Journal that “[d]isregard of precedent is one of [Stevens’] top concerns about John Roberts’s court.” For The Washington Post, Robert Barnes reports that Stevens “expressed generalized distress at the state of the world and the nation’s politics.”

Briefly:

For The New York Times, Adam Liptak writes that although President Donald Trump’s two Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, “were widely expected to be jurisprudential twins,” “it turns out that there is more than a little daylight between” them.

At CNN, Joan Biskupic explains that “[w]hat happens in [June Medical Services v. Gee, a pending cert petition challenging a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals,] … could be first in a series of incremental rulings on a path that, in the end, would determine the fate [of] Roe v. Wade.”

In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, former solicitor general Paul Clement “discusses how each new justice changes the Supreme Court” and “shares his tips for getting the Court to overturn its past cases.”

In an op-ed at CNN, Elizabeth Wydra writes that “[a]s the Supreme Court strives to finish its work by the end of June[,] deciding on issues from the future of the census to the ability of politicians to draw their own legislative districts[,]” Chief Justice John “Roberts is in danger of losing his battle to keep most Americans from seeing the court he leads as divorced from politics.”

At The George Washington Law Review’s On the Docket blog, Richard Pierce argues that in in Thacker v. Tennessee Valley Authority, in which the court held that that the TVA can generally be sued for personal-injury claims and instructed the lower court that the TVA might be entitled to immunity from suit depending on “whether transmission of electricity is a governmental function or a commercial function,” “the Court replaced a legal regime that was easy to implement and that performed well in myriad contexts for decades with a new legal regime that will present major challenges to courts.”

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On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.